Citation Nr: 1140974
Decision Date: 11/03/11 Archive Date: 11/16/11
DOCKET NO. 04-27 218 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUE
Entitlement to service connection for the cause of the Veteran's death.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C. C. Dale, Associate Counsel
INTRODUCTION
The Veteran had active military service from July 1966 to July 1968. He died in July 1983 and the appellant is his surviving spouse.
This matter comes before the Board of Veterans Appeals (Board) on appeal from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.
In July 1983 the appellant submitted a claim for entitlement to service connection for the cause of the Veteran's death. In a rating decision of September 1983, the RO denied the claim. The appellant did not appeal this decision to the Board, and it became final. The appellant sought to reopen her claim in May 1989. In April 1994, the RO again denied the claim. The appellant did not appeal this decision to the Board, and it became final. The appellant sought to reopen her claim in January 2002. Since the appellant's claim had been previous denied, it was characterized as a petition to reopen a claim for service connection for cause of death based on new and material evidence.
In April 2006, April 2008, and September 2009, the Board remanded her claim to provide the appellant with proper notice in accordance with 38 U.S.C.A. § 5103(a) to include the notice specified by the United States Court of Appeals for Veterans Claims (Court) in Kent v. Nicholson, 20 Vet. App. 1 (2006), concerning the previous denial of her claim, and Hupp v. Nicholson, 21 Vet. App. 342 (2007), concerning her underlying service connection claim.
In August 2010, the Board issued a decision that reopened the claim for new and material evidence and denied the underlying claim for service connection for cause of death.
The appellant appealed the August 2010 Board denial to the Court. Before the Court issued a decision, the parties filed a Joint Motion for Remand (Joint Motion). The Court granted the Joint Motion in June 2011. It vacated the August 2010 Board decision and remanded the appeal to the Board for compliance with its instructions.
The appellant also submitted a September 2011 statement and indicated that she desired the agency of original jurisdiction to consider it.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
The June 2011 Joint Motion was premised on a finding that the Board did not provide an adequate statement of the reasons or bases in finding that a VA medical opinion was not necessary to adjudicate the claim. 38 U.S.C.A. § 5103A(d). It instructed the Board to consider whether there is any reasonable possibility that a medical opinion would substantiate the claim. It cited possible hepatoma etiologies raised by the record including a direct relationship to Agent Orange exposure, the acquisition of hepatitis A, or hepatitis B exposure during service.
In order to comply with the June 2011 Joint Motion instructions, the Board finds that a VA medical opinion is necessary as detailed below.
Accordingly, the case is REMANDED for the following action:
1. Obtain a VA medical opinion from a healthcare provider with hepatoma expertise. The Board finds that an examiner with such expertise is necessary to resolve the medical issues raised by the evidence.
The claims folder and a copy of this remand must be made available to the examiner who should indicate receipt and review in his or her report.
The examiner must note that during service the Veteran is presumed to have been exposed to herbicides, including Agent Orange. The examiner must also consider that the Veteran had been exposed to hepatitis B during service, and tested positive for the hepatitis A antigen in December 1981.
After thorough review of the record, the examiner is asked to provide an opinion as to whether it is more or less likely (50 percent probability or greater) that the Veteran's hepatoma is etiologically related to service, including presumed herbicide exposure and exposure to hepatitis B. The examiner must provide a detailed rationale explaining the scientific principles that underlie his or her opinion.
If the examiner is unable to express an opinion without resort to speculation, he or she must so state. The examiner must also include a thorough explanation as to why a non-speculative medical cannot be rendered, such as issues raised beyond the limits of current medical research or missing records. If there are missing records that would permit a non-speculative opinion to be given, the examiner must identify these records and explain their significance.
2. The agency of original jurisdiction should review the examination report to ensure that it contains the information requested in this remand and is complete. Stegall v. West, 11 Vet. App. 268, 271 (1998).
3. If any benefit on appeal remains denied, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
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CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).